Mr Neil Sheldon (instructed by the Treasury Solicitor) for the Appellant

Mr Michael Harris (instructed on a public access basis) for the Respondent

Hearing date: 9 February 2017

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JudgmentLord Justice Underhill:

INTRODUCTION

1. The Respondent to this appeal, Huu Dinh Nguyen, is a national of Vietnam born on 30 October 1985. He came to this country illegally in or about March 2002, when he was aged sixteen. He came to the attention of the authorities in November 2002 and was served with a notice requiring him to leave the country. He did not do so. In late 2004 he started a relationship with another Vietnamese national, Huyen Thu Trinh (``Huyen''). Huyen was at that point married to a British citizen, Tam Van Hoang (``Tam''), by whom she was pregnant. The Respondent and Huyen went through an unofficial marriage ceremony in February 2005. Huyen's daughter by Tam, Amy, was born in August 2005 and has always lived with her mother and the Respondent. The Respondent and Huyen have since had a son, Jimmy, who was born in September 2007. They were legally married on 3 September 2013.

2. On 6 February 2009 the Respondent pleaded guilty to being concerned in producing a class C controlled drug and he was sentenced to two years' imprisonment. On 28 October 2009 a deportation order was made. After a complicated sequence of events into which it is unnecessary to go, on 31 October 2013 the Secretary of State, who is the Appellant in this appeal, made a decision not to revoke that order. The Respondent appealed against that decision.

3. The Respondent's appeal was heard by the First-tier Tribunal, comprising FTTJ Stokes and another tribunal member whose name has unaccountably been omitted from the record of the proceedings. By a determination promulgated on 25 June 2014 his appeal was allowed. The Tribunal found that his deportation would be in breach of the rights of himself and his family - that is, his wife Huyen, his step-daughter Amy and his son Jimmy - under article 8 of the European Convention on Human Rights.

4. The Secretary of State appealed to the Upper Tribunal. The appeal was heard by UTJ Allen. By a determination dated 16 October 2014 the appeal was dismissed.

5. This is an appeal against that decision. The Secretary of State has been represented before us by Mr Neil Sheldon and the Respondent by Mr Michael Harris. Neither appeared in either of the tribunals below.

BACKGROUND LAW

6. The Respondent is a ``foreign criminal'' as defined by section 32 (2) of the UK Borders Act 2007 because he has been convicted of a criminal offence for which he was sentenced to at least twelve months in prison. It follows, by virtue of section 32 (4), that his deportation is conducive to the public good. It also follows, by virtue of section 32 (5), that the Secretary of State was obliged to make a deportation order unless one of the exceptions set out in section 33 applied. The only relevant exception here is that provided by sub-section (2) (a), namely that his deportation would ``breach a person's Convention rights'': the Convention right which is in play is article 8, which protects the right to respect for family and private life.

7. The European Court of Human Rights has consistently recognised that there is a strong public interest in the deportation of foreign criminals, but also that in some cases that interest may be outweighed by the interests protected by article 8. The Secretary of State has sought in the Immigration Rules to reflect the effect of the Strasbourg case-law. A similar attempt has now been made by Parliament, with the introduction of Part 5A of the 2002 Act by the Immigration Act 2014; but those provisions were not in force at the material time. The core provisions relating to deportation decisions are paragraphs 398-399A; and the effect of paragraph 390A is that those provisions apply equally to the question whether to revoke such a decision.

8. Paragraph 398, as it stood at the material time, read as follows:

``398. Where a person claims that their deportation would be contrary to the UK's obligations under Article 8 of the Human Rights Convention, and

(a) the deportation of the person from the UK is conducive to the public good because they have been convicted of an offence for which they have been sentenced to a period of imprisonment of at least 4 years;

(b) the deportation of the person from the UK is conducive to the public good because they have been convicted of an offence for which they have been sentenced to a period of imprisonment of less than 4 years but at least 12 months; or

(c) the deportation of the person from the UK is conducive to the public good because, in the view of the Secretary of State, their offending has caused serious harm or they are a persistent offender who shows a particular disregard for the law,

the Secretary of State in assessing that claim will consider whether paragraph 399 or 399A applies and, if it does not, it will only be in exceptional circumstances that the public interest in deportation will be outweighed by other factors.''

Paragraphs 399 and 399A identify circumstances pertaining to the criminal's family life (paragraph 399) or his or her private life (paragraph 399A) which the Secretary of State regarded, based on her understanding of the Strasbourg authorities, as sufficient to outweigh the public interest in deportation. If the criminal cannot get through either gateway, then, as paragraph 398 says, only ``in exceptional circumstances'' will the public interest in his or her deportation be outweighed: that phrase too is derived directly from the Strasbourg case-law.

9. As will in due course appear, it is common ground that neither gateway applies in the present case, but I need nevertheless to set out paragraph 399, which at the material time read as follows:

``399. This paragraph applies where paragraph 398 (b) or (c) applies if -

(a) the person has a genuine and subsisting parental relationship with a child under the age of 18 years who is in the UK, and

(i) the child is a British Citizen; or

(ii) the child has lived in the UK continuously for at least the 7 years immediately preceding the date of the immigration decision;

and in either case

(a) it would not be reasonable to expect the child to leave the UK; and

(b) there is no other family member who is able to care for the child in the UK;

or

(b) the person has a genuine and subsisting relationship with a partner who is in the UK and is a British Citizen, settled in the UK, or in the UK with refugee leave or humanitarian protection, and

(i) the person has lived in the UK with valid leave continuously for at least the 15 years immediately preceding the date of the immigration decision (discounting any period of imprisonment); and

(ii) there are insurmountable obstacles to family life with the partner continuing outside the UK.''

There are thus two alternatives under this gateway - (a), which is concerned with parental relationships; and (b), which is concerned with relationships with a partner.

10. In MF (Nigeria) v Secretary of State for the Home Department [2013] EWCA Civ 1192, [2014] 1 WLR 544, this Court, at paras. 38-44 (pp. 560-561), gave guidance as to the correct approach to the provision in paragraph 398 that in cases which did not fall within paragraphs 398 or 399A the public interest in deportation would only be outweighed ``in exceptional circumstances''. In summary, it held that that phrase required the decision-maker to carry out the proportionality exercise required by article 8, ``weighing the factors which favour deportation against those which do not'' (para. 38). That will incorporate factors mentioned in the Strasbourg case-law which are not already taken into account in the formulation of the paragraph 398 and 399 gateways, including ``what is in the best interests of the child, the age of the offender at the date of entry into the UK and at the date of the offending, the length of time since the offence, and the offender's subsequent conduct'' (see para. 39). The Court held that the effect of the reference to ``exceptional circumstances'' was to emphasise that in that balancing exercise great weight had to be given to the public interest in deporting foreign criminals whose cases do not fall within the terms of paras. 399 or 399A (see para. 40). The intention was not to impose a test of exceptionality as such but to recognise that ``the scales are heavily weighted in favour of deportation and something very compelling (which will be `exceptional') is required to outweigh the public interest in removal'' (para. 42). It summarised the correct approach as follows:

``43. The word `exceptional' is often used to denote a departure from a general rule. The general rule in the present context is that, in the case of a...